AAP MLAs’ Disqualification: Decoding the Office of Profit Case

The Aam Aadmi Party (AAP) had a setback on Friday, 19 January, as the Election Commission reportedly sent a recommendation to the President to disqualify 20 party MLAs who allegedly held offices of profit.

The development led to political mudslinging, with the AAP questioning the integrity of the Election Commission (EC) and the Bharatiya Janata Party and Congress questioning the credibility of the Arvind Kejriwal-led government in Delhi.

So what is the controversy all about? What has happened in the last two years? What is the relevant law on this issue? And what does one mean by an ‘office of profit’?

We try to answer all these questions.

What Has Happened So Far?

On 13 March 2015, the Arvind Kejriwal-led Delhi government appointed 21 MLAs as parliamentary secretaries. Advocate Prashant Patel filed a petition before then-president Pranab Mukherjee asking for their disqualification for holding an ‘office of profit.’

The Delhi government tried to pass a law retrospectively, excluding the post of parliamentary secretaries from the ambit of an ‘office of profit,’ but the law was not accepted by the president.

Following the procedure under Section 15 of the Government of National Capital Territory of Delhi Act 1991, the Election Commission was asked by the President for an opinion on whether or not to disqualify the MLAs. The Election Commission held that the petition was maintainable and has been looking into the issue for over a year now.

In August 2017, the AAP government tried to obtain a stay from the Delhi High Court on the Election Commission’s decision that the petition was maintainable. The High Court held that the EC’s deliberations were yet to begin, and therefore there was no possibility of staying them.

On Friday, 19 January, it was reported that the Election Commission decided to recommend that the 20 MLAs in question (one out of the 21 had resigned during this time) should be disqualified. While the AAP approached the Delhi High Court against the EC’s purported recommendation, the court refused to grant interim relief to the MLAs.

What Is the Relevant Law on This Issue?

Articles 102 and 191 of the Constitution of India provide for disqualification of MPs and MLAs respectively, including on grounds of holding an ‘office of profit.’ However, this term is not defined.

The Government of National Capital Territory of Delhi Act 1991 (GNCTD Act 1991) specifically deals with the legislature of Delhi. Section 15 of this Act specifies that an MLA can be disqualified “if he holds any office of profit under the Government of India or the government of any state or the government of any Union territory.”

There are certain positions which are exempted from being considered offices of profit, but these need to be specified in a law – hence the AAP government’s attempt to retrospectively pass a law for the post of parliamentary secretary in 2015.

Since there is no official definition of ‘office of profit,’ it is up to the discretion of the relevant authority to decide whether any particular post is such an office. Technically, when it comes to Delhi MLAs, that is the President, since any petition for disqualification of Delhi MLAs has to be sent to the President under Section 15(3) of the GNCTD Act 1991, and the decision is final.

However, Section 15(4) of the GNCTD Act 1991 also says that before making a decision, the President “shall obtain the opinion of the Election Commission and shall act according to such opinion.”

As a result, once the Election Commission has made its recommendation over what to do with the AAP MLAs, President Ram Nath Kovind would appear to be bound by such recommendation.

What Is an ‘Office of Profit’?

Even though there is no definition of the term, and the deciding authority has discretion to decide what it refers to, this does not mean that there are no guiding principles to be followed.

At the outset, it should be noted that the disqualification doesn’t relate to having any other job or profession – it refers specifically to a position with the Central government or a state/UT government.

This is because the idea behind providing for this disqualification is to ensure that there is no conflict of interest between the legislature and the executive.

The Supreme Court has also provided guidance on the concept, most notably from the 1963 decision in Gurugobinda Basu vs Sankari Prasad Ghosal & Ors. In this case, a five-judge bench of the Supreme Court held that the factors to be considered when considering whether or not a particular position is an office of profit under a particular government are:

Who has made the appointment to the position?

Who has the power to terminate the appointment?

Who has the power to decide what remuneration is paid for the appointment?

What is the source of the remuneration?

Who has control over how the appointee performs their duties and to give directions regarding these?

None of these factors are decisive, so even if a particular government makes the appointment, this doesn’t mean that the position is an office of profit under that government.

Therefore, if the AAP government seeks to challenge the EC’s decision, they will need to show that some of these factors were not satisfied with regard to appointment of the parliamentary secretary.

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